Monday, November 18, 2013

Classified Information, Graymail and the Bill of Rights

James F. Hitselberger has been

charged by the United States of America
on three counts of violating 18 U.S. Code § 793(e), for knowingly removing
and retaining classified information from a secure location. He has also been
charged on three counts of violating 18 U.S. Code § 2071(a), for
unlawfully removing public documents from their secured location.

According to the Criminal Complaint that was filed to
initiate the case (and later followed by the indictment), the events that led
to the charges effectively began in June of 2011 when Global Linguist Solutions, LLC (GLS) “offered him a job as a
linguist.” U.S. v. Hitselberger,
Criminal Complaint ¶ 6, (U.S.
District Court for the District of Columbia 2012).That same month, he underwent “Initial
Security Awareness Training” at the GLS Security Office in Herndon,
Virginia.Criminal Complaint ¶ 8. In September of 2011, GLS
deployed Hitselberger to “Naval Support Activity Bahrain . . . in support of
the Joint Special Operations Task Force-Gulf Cooperation Council
(JSOTF-GCC).Criminal Complaint ¶ 9.

10. Upon his arrival in Bahrain,
HITSELBERGER underwent additional security training. On September 26, 2011, he
received a certificate of completion for the Information Assurance Awareness
course. During this course, HITSELBERGER again received training on the various
types of classified information. He also was instructed that a security violation
occurs whenever a cleared individual, `Remov[es] classified information in
order to work on it at home’ or `Tak[es] classified information home,
ostensibly to work on it at home . . . .’

11. During Fall of 2011, one of
HITSELBERGER’S supervisors, who was assigned to the JSOTF-GCC, observed and
overheard HITSELBERGER discussing SECRET/NOFORN HUMINT classified information
at the NSA-Bahrain commissary. Such information is classified at the SECRET
level, it cannot be shared with foreign nationals (NOFORN), and it derives from
human assets (HUMINT). The discussion was in public in an unauthorized area not
specified for classified discussions. During this incident, HITSELBERGER talked
loudly about the document he had just translated, which he thought was
interesting. The supervisor told HITSELBERGER to stop, but HITSELBERGER laughed
at him and began talking about it again. . . .

12. On April 11, 2012, at approximately
11:15 a.m., HITSELBERGER signed into his Secret Internet Protocol Router
Network (SIPRnet) account, which is located on a secure, SECRET level computer
system, and began by checking his email at a computer workstation within the
JSOTF office space. This space is a Restricted Access Area (RAA). During his
computer activity, HITSELBERGER was observed by two supervisors viewing JSOTF
Situation Reports (SITREPs), which were classified SECRET. HITSELBERGER was
then observed printing multiple pages of the SECRET SITREP documents from a
SECRET printer. One of HITSELBERGER’S supervisors became concerned that
HITSELBERGER, a translator, was reviewing classified SITREPS which contained
sensitive troop information and intelligence analysis. HITSELBERGER was then
observed taking the classified documents from the printer, folding them, and
placing them into an Arabic-English Dictionary and subsequently placing the
dictionary into his personal backpack.

HITSELBERGER left the RAA and the
building with SECRET documents in his backpack. As previously stated, [he] did
not possess the requisite authority, or courier authority, to remove classified
documents from the RAA. After witnessing the event, and upon leaving the RAA,
one of HITSELBERGER’s supervisors and his commanding officer followed him in
order to prevent the classified material from being compromised further. They
stopped him in a public space outside the building that houses the RAA. They
told HITSELBERGER they needed to see what was in his bag and asked him to
produce the documents he had just printed. HITSELBERGER first took out only one
classified document from inside the dictionary. When his supervisor asked what
else he had, HITSELBERGER finally surrendered the second classified document
from his backpack.

conducted a Command Authorized Search
and Seizure of Hitselberger's living quarters in Bahrain. . . . Inside, Special
Agents found documents classified as SECRET with the SECRET warning label cut
off the top and bottom of the pages. . . . . After investigation, it was
determined that Hitselberger received the documents as an e-mail attachment sent to several
persons on a distribution list.

U.S. v. Hitselberger,
supra.

In this opinion, the District Court Judge who has this case
is not ruling on issues that go to the viability of the charges against
him.U.S.
v. Hitselberger, supra.Instead, he is challenging certain
requirements that Classified Information Procedures Act (CIPA) imposes on him
prior to trial.U.S. v. Hitselberger, supra.
As the opinion explains,

[p]rior to trial, Hitselberger is
required, under the Classified Information Procedures Act 18 U.S.C.App. III
Section 5, to notify and briefly describe to the Government and the court any
classified information the defense is likely to disclose during the trial.
Furthermore, Hitselberger may be obligated, under Section 6 of the same
provision, to explain the use and relevance of previously disclosed classified information
in a hearing before this Court. If Hitselberger fails to comply with these
provisions, disclosure of the classified information may be precluded.

U.S. v. Hitselberger,
supra.

In this opinion, the judge is ruling on Hitselberger’s
argument that “Sections 5 and 6 of the CIPA” violate (i) his 5th Amendment right not to be compelled to incriminate himself and/or (ii) his 6th Amendment right “to confront and cross-examine witnesses against him.”U.S. v.
Hitselberger, supra.The judge begins his analysis of the
arguments by explaining that

Section 5 [of the CIPA] requires a
defendant to provide notice to the United States and this court if he or she `reasonably
expects to disclose or cause the disclosure of classified information.’ . . .
Section 6 provides for a pre-trial hearing, upon the request of the United
States, to determine the use, relevance or admissibility of the classified
information that would otherwise be disclosed during the criminal trial. . . .

U.S. v. Hitselberger,
supra.

He also explained that

Congress enacted CIPA in 1980 in order to respond to the
`graymail’ problem arising in national security prosecutions involving
classified information. As Judge Greene explains in U.S. v. Poindexter, 725
F.Supp. 13, 31–32 (D.D.C. 1989):

`[T]he so-called `graymail’ problem -- the
problem of defendants in criminal cases threatening to introduce classified
information at trial ... confront[ed] the government with the choice between
permitting highly sensitive national security information to become publicly
known, on the one hand, and capitulating to the graymail by dismissing the
charges, on the other.’

CIPA thus includes provisions, such as Sections 5 and 6, in order to provide
the government with notice of the type and basic content of classified
information which may be disclosed at trial. Still, Congress was careful to
highlight the defendant's continued and important right to a fair trial, thus
creating a statutory framework carefully balancing both the government's and
the defendant's interests. U.S. v. Poindexter, supra.

U.S. v. Hitselberger,
supra.

The judge then addressed Hitselberger’s first argument,
which was that §§ 5 and 6 of CIPA violate his 5th Amendment right
not to be compelled to incriminate himself in criminal activity.U.S. v.
Hitselberger, supra.Hiteselberger argued that the

notice and hearing requirements of CIPA
Sections 5 and 6 violate his 5th Amendment privilege against self-incrimination
because they force him to reveal classified aspects of his own potential trial
testimony and would damage his ability to present an effective defense. This,
defendant argues, infringes on his right to remain silent until and unless he
decides to testify

U.S. v. Hitselberger,
supra.

The judge did not agree.He noted, first, that sections 5 and 6 of CIPA

do not require a defendant to specify
what he will testify about or even whether he will testify. `The statute
requires merely a general disclosure as to what classified information the
defense expects to use at the trial, regardless of the witness or the document
through which that information is to be revealed.’ U.S. v. Poindexter,
supra. See alsoU.S. v. Hashmi, 621 F.Supp.2d 76 (U.S. District
Court for the Southern District of New York 2008) (`The potential of precluding
the disclosure [under CIPA] does not amount to a ‘penalty’ for the defendant's
exercising of his right to remain silent’); U.S. v. Lee, 90
F.Supp.2d 1324 (U.S. District Court for the District of New Mexido 2000) (CIPA
does not require a defendant to specify whether or not he will testify and the
defendant maintains an option to remain silent regardless of CIPA disclosures).
. . .

CIPA's disclosure requirements only
govern pre-trial evidentiary disclosures, as opposed to testimonial
disclosures. And mere evidentiary disclosures do not violate a defendant's 5th
Amendment right to remain silent. See U.S. v. Nobles, 422 U.S. 225 (1975) (`the constitutional guarantee [against
self-incrimination] protects only against forced individual disclosures of a “testimonial
or communicative nature”’). Moreover, CIPA's disclosure requirements
neither require the defendant to use the disclosed evidence at trial, nor take
the stand and testify on his own behalf if he does not wish to do so.

As he then explained, the judge found there were three
reasons why the CIPA requirements did not violate Hitselberger’s right to
confront witnesses under the 6th Amendment.U.S. v.
Hitselberger, supra.The first was that the CIPA disclosures are

not burdensome enough on the
defendant's ability to cross examine witnesses to constitute a violation of the
Confrontation Clause. As noted in U.S. v. Drake, `CIPA does not
mandate that [the defendant] reveal his trial strategy, but only that he
identify whatever classified information he plans to use.’ 818 F.Supp.2d
909 (U.S. District Court for the District of Maryland 2011). See also
U.S. v. Lee, 90 F.Supp.2d 1324 (U.S.
District Court for the District of New Mexico 2000) (`CIPA does not require
that the defense reveal its plan of cross-examination . . .what questions. . . counsel will ask, in which order, and
to which witnesses.); U.S. v. Ivy,
1993 WL 316215 (U.S. District Court for the District of Pennsylvania). . . .
This merely amounts to a `tactical disadvantage’ not an infringement of Hitselberger's
Confrontation Clause rights. U.S. v. Lee,
supra.

U.S. v. Hitselberger,
supra.

The second reason was that sections 5 and 6 of CIPA

are unlike the statute in Davis v. Alaska, where the defendant was fully
foreclosed from cross-examining an adverse witness. 415 U.S. 308 (1974). Hitselberger
recognizes that is not the case here. He instead contends that CIPA disclosures
make the defense's cross-examination less effective because the State will have
advance access to key defense evidence and strategy. . . . This is not
sufficient to constitute a constitutional violation.

The Supreme Court has held, in the
context of alibi defenses, that the defendant does not retain a constitutional
right to “surprise the State” with evidence that they were already planning to
divulge at trial. Williams v. Florida, 399 U.S. 78 (1970). See
also U.S. v. Drake, supra (`[T]he Confrontation clause does not
guarantee the right to undiminished surprise with respect to cross-examination
of prosecutorial witnesses’); U.S. v. Poindexter,supra (rejecting defendant's theory that
the 6th Amendment guaranteed him an `unqualified right to undiminished surprise
with respect to cross-examination’). . . .

U.S. v. Hitselberger,
supra.

Finally, the judge explained that the

state's interest in protecting
classified information from the public's eyes is a significant and important
interest. See U.S. v. Drake,supra (possible preclusion of undisclosed classified
information was outweighed by the government's regulatory interest in
protecting that information); U.S.
v. Lee, supra (`it is obvious and unarguable that no governmental interest
is more compelling than the national security of the Nation’); U.S. v. Poindexter, (describing how `graymail’ had impaired
the government's ability to effectively prosecute individuals endangering
national security).

U.S. v. Hitselberger,
supra.

He also noted that, as he explained earlier in the opinion,
“Congress has already carefully balanced both the State's and defendant's
interests in enacting CIPA, requiring the disclosure of only classified
information likely to be disclosed at trial, and allowing the district court
significant leeway to make a case by case determination on the admissibility of
that evidence.”U.S. v. Hitselberger, supra.